A federal judge in Florida this week ruled in favor of a blind Miami man who alleged in a 2016 class action lawsuit that Southeastern supermarket and pharmacy chain Winn-Dixie’s website was not in compliance with Title III of the federal Americans with Disabilities Act (ADA). For such a momentous ruling—the courtroom trial for which was described by ForbesLegal Newsline writer John O’Brien as the “first-of-its-kind,” with the ruling itself only the second-ever instance of an ADA-website class action concluding in favor of the plaintiff—it’s worth fully unpacking the decision. The precedent set by this case could provide insight into how hundreds of similar class action lawsuits currently in the system go down.

The Plaintiff

The legally blind Miami man (who also has cerebral palsy, the decision notes) who filed the lawsuit uses software that automatically reads aloud to him what’s happening as he browses around a website. It’s important to know that the plaintiff, like almost every other blind Internet user, has difficulty utilizing a mouse while browsing. Instead, the screen reading software tells him what to type every time he hits the tab key while navigating an accessible website.

Judge Robert Scola, of the Southern District of Florida, noted in his decision that the plaintiff derived his income solely from Social Security and shopped at Winn-Dixie and its pharmacy for their low prices. To refill prescriptions, Judge Scola’s decision notes, the plaintiff would typically walk into a store and solicit an employee to walk him to the pharmacy area where he would tell the pharmacist what he needed.

“But he felt uncomfortable because he did not know who else was nearby listening,” Judge Scola wrote, adding that the plaintiff sought to refill prescriptions online as to not have to orally announce at the store what medications he’s filling to maintain his privacy and HIPPA rights.

In addition to the inconvenience of having to ask for someone’s help while filling prescriptions, the plaintiff also required assistance in cutting Winn-Dixie coupons from a newspaper.

“He would also ask employees to find coupons for him but sometimes the employees seemed annoyed by his request for help,” Judge Scola added.

After hearing that coupons, as well as store locations and hours, could be accessed and prescriptions could be refilled through winndixie.com, the plaintiff attempted to perform these actions online, but says he was unable to do so due to the site’s accessibility barriers.

The Decision

Why Did the Judge Rule in the Plaintiff’s Favor?

Primarily, Judge Scola found that since Winn-Dixie’s website is “heavily integrated” with the company’s more than 500 brick-and-mortar stores across five states, www.winndixie.com is subject to the ADA. In his decision, Judge Scola also noted that:

Despite undergoing substantial (and costly) upgrades as recently as 2015 and in 2017 to implement its Plenti rewards program, Winn-Dixie’s website was inaccessible to screen-reading software commonly used by blind internet users. Winn-Dixie knows it’s feasible to make its website accessible, the decision notes, and that the cost to make these changes would “pale in comparison” to the millions it previously spent updating the site.

The plaintiff says he fully intends on patronizing Winn-Dixie’s physical stores again once he can fully access the company’s website. (This, in particular, was a crucial component in the judge’s decision to order injunctive relief – more on that later.)

There existed a “casual connection” between the injury, i.e. the violation of the plaintiff’s rights, and the man’s troubles in accessing Winn-Dixie’s website – including his difficulty finding store locations when traveling. The decision adds that the plaintiff’s injury could be remedied should the court rule in his favor.

Places of Public Accommodation

The cloud hanging over almost every one of the hundreds of ADA-website class actions currently on the books is the argument of whether a business’s website should be considered a true “place of public accommodation.” It’s this gray area that Judge Scola was tasked with clearing up, specifically if, “as a result of the fact that [the plaintiff] is visually impaired,” the man and other class members were denied the full and equal enjoyment of the “goods, services, facilities, privileges, advantages, or accommodations” available at Winn-Dixie’s store locations as a result of its inaccessible website.

Here, it’s crucial to point out that the disagreement over whether websites should be held in the same light as or directly connected with physical places of accommodation is by no stretch a new argument. Many courts, Judge Scola pointed out citing specific cases for either side of the aisle, are split on whether the ADA allows for only physical spaces to be places of public accommodation. Further muddying this is the absence of any guidance on the subject from the Department of Justice, who, Forbes wrote, promised back in 2010 that formal regulations governing websites and ADA compliance would eventually be issued. Most expect the DOJ to make its two cents available sometime in 2018. In the meantime, judges are pushing forward without federal guidance.

At the end of the day, Judge Scola left it up to others to sort out once and for all the criteria and technical measures necessary for a website to be considered a place of public accommodation under the ADA. Instead, Judge Scola felt that heavy integration between stores and Winn-Dixie’s website was enough to swing the case in the plaintiff’s favor. From the decision (emphasis ours):

“The Court need not decide whether Winn-Dixie’s website is a public accommodation in and of itself, because the factual findings demonstrate that the website is heavily integrated with Winn-Dixie’s physical store locations and operates as a gateway to the physical store locations.”

The decision adds that, in these instances, “courts have found that the website is a service of a public accommodation and is covered by the ADA.”

Judge Scola further noted that even though Winn-Dixie argued the plaintiff had not been denied access to its physical store locations because he couldn’t access www.winndixie.com, as well as the fact that certain parts of its website are operated by third-party vendors, which the company claimed excused Winn-Dixie from some of its ADA obligations, the ADA “does not merely require physical access to a place of public accommodation.”

Even Without Sales, Coupons and Prescriptions Played a Major Role in the Decision

An interesting wrinkle in this case is that, despite conventional thinking, no sales are conducted through Winn Dixie’s website. Despite this, customers browsing winndixie.com can utilize services such as refilling prescriptions through the company’s pharmacy management system; accessing digital coupons that automatically link to a customer’s rewards card; and finding store locations and their hours of business. Judge Scola said these particular online services are especially vital to visually impaired customers.

“Therefore, Winn-Dixie has violated the ADA because the inaccessibility of its website has denied [the plaintiff] the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that Winn-Dixie offers to its sighted customers,” Judge Scola wrote.

Damages

The plaintiff will not receive any compensatory damages (although they were requested in his original complaint). As part of the ruling, Winn Dixie said it’s set aside $250,000 to implement updates to its website (though a mobile and web software expert who testified at the trial said it would cost far less) to meet ADA compliance regulations. This, in the legal world, is what’s known as injunctive relief.

It’s worth pointing out that similar store chains, such as Walgreens and Publix, already have websites that are fully compatible with screen readers, a fact noted in Judge Scola’s decision.

“[The plaintiff has used other grocery stores because from their website he can create a shopping list and just hand it to the employee and he could use coupons he obtains from the website and he can pick up prescriptions in privacy,” Judge Scola wrote in his 13-page ruling. “Both Public and Walgreens have websites which he can use with his screen reader software.”

Why All This Matters Now

Since it was put into law in 1990, the ADA has been the subject of many lawsuits stemming from brick-and-mortar, real-world barriers that deny disabled individuals full and equal access to businesses and facilities. A trend many may be unaware of is that these types of class action lawsuits have undeniably taken a backseat to cases alleging business’ websites are not compliant with the ADA. Filings of these types of cases were up by nearly 40 percent in 2016, with more than 250 filed last year alone. Per our own records, ClassAction.org has written about roughly 70 ADA-website cases since our Newswire opened for business last October (most of which were filed by a single law firm in New York City, but we’ll save that for another blog post).

Attorneys and legal experts are coming to the realization that this trend is not slowing down, and Judge Scola’s decision in Gil v. Winn-Dixie Stores, Inc. is invaluable in trying to assess what to expect from an uncharted legal landscape in which disabled individuals, judges and corporate defendants don’t have the time nor the resources to hold their breath while awaiting guidance from on high.

Last Updated on June 16, 2017 — 4:06 PM

Corrado Rizzi

corrado@classaction.org

Corrado Rizzi is the News Editor and a writer for ClassAction.org.

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